Citation Nr: 21015597 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 07-29 115 DATE: March 17, 2021 ORDER Entitlement to service connection for a neck disability, as secondary to service-connected right foot residuals, is denied. Entitlement to service connection for a right shoulder disability, as secondary to service-connected right foot residuals, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence establishes the Veteran’s neck condition was not present until more than one year following his discharge from service and is not etiologically related to his active service, to include as secondary to his service-connected right foot residuals. 2. The preponderance of the evidence establishes the Veteran’s right shoulder condition was not present until more than one year following his discharge from service and is not etiologically related to his active service, to include as secondary to his service-connected right foot residuals. 3. The evidence of record does not show that the Veteran’s service-connected disabilities render him unable to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a neck disability have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 2. The criteria for establishing entitlement to service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 3. The criteria for establishing entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from January 1975 to May 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from December 2006 and September 2012 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). When this case was last before the Board in September 2020, it was remanded for additional development. Specifically, the RO was instructed to obtain medical opinions regarding the etiology of the Veteran’s claimed disabilities which addressed specific evidence. The Veteran was provided with the relevant examinations. As such, the Board finds that the AOJ substantially complied with the directives in the September 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection—Legal Criteria Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted on a secondary basis for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Neck and Right Shoulder At the outset, the Board notes that the essential facts of the Veteran’s claims for service connection for his neck and right shoulder are essentially identical. In addition, the resolution of these claims involves the application of identical law to similar facts. As such, in the interest of judicial economy these issues will be addressed together. In this case, the Board has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran contends that his neck and right shoulder disabilities are etiologically related to his service-connected right foot residuals. The Board notes that the Veteran has current diagnoses of degenerative arthritis of the spine, intervertebral disc syndrome, residuals status post cervical discectomy and fusion, right shoulder glenohumeral joint osteoarthritis, right shoulder acromioclavicular joint arthritis, and right shoulder degenerative arthritis. See September 2020 VA Neck Conditions examination and September 2020 VA Shoulder and Arm Conditions examination. Therefore, the central issue that must be resolved is whether the Veteran’s current disabilities originated in service or are otherwise related to service. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007); Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Veteran has currently diagnosed disabilities, the competent medical evidence of record does not support that these disabilities were incurred in service or otherwise related to service. The Veteran’s service treatment records (STRs) contain no complaints, treatment, or diagnoses of neck and shoulder conditions. Additionally, the Veteran does not claim that these conditions originated in service, as such, service connection on a direct basis is not warranted. During his August 2016 Board hearing, the Veteran testified that his neck and shoulder injuries are due to falls he experienced in the 1990s, which he relates to his service connected right foot residuals causing instability and an antalgic gait. The Veteran’s medical records from the Columbia Palmyra Medical centers indicate that the Veteran’s neck and arm pain began after an accident at work in December 1994 when he slipped and fell off of a scaffold about 20 inches high that was in an “oily-type environment.” The treatment note indicated that the Veteran turned to leave the area, slipped, and landed on his head, neck, and back. The medical notes provided no indication that the Veteran experienced instability or an antalgic gait prior to his accident. The Veteran submitted March 2002 and July 2002 medical notes from a Dr. S.S. which noted that the Veteran injured his neck at work and had cervical disc surgery in 1999. Dr. S.S. continues that since then the Veteran has had persistent arthritis and tendonitis problems in his arms. However, Dr. S.S. does not provide a nexus regarding the Veteran’s neck and shoulder conditions and his service-connected disabilities. No instability or antalgic gait is noted. The Veteran submitted an October 2016 private medical opinion from a Dr. J.R. In this opinion, Dr. J.R. indicated that he had reviewed the medical file and in his opinion, it was more likely than not that the Veteran’s right shoulder injuries were a result of his service-connected right foot injury. However, no rationale is provided regarding this conclusion. In response to the Board’s September 2018 Remand, the RO provided the Veteran with October 2019 VA Shoulder and Neck examinations. The examiner noted that the Veteran’s injuries began after his occupational injury. Regarding the Veteran’s neck condition, the examiner opined that it was less likely than not (less than a 50 percent probability) related to his active service as the Veteran’s separation examination was normal. The examiner continued that after reviewing the data, interviewing the Veteran, and a focused examination, the evidence showed that the Veteran’s neck injury was more likely than not (greater than 50 percent probability) caused by his occupational injury. The examiner noted that the Veteran’s right foot disability is not relevant to, or a cause of, his neck conditions as there are no records or medical documents linking the two. Regarding the Veteran’s shoulder disability, the examiner noted it was less likely than not (less than a 50 percent probability) related to his active duty service. The examiner noted that the Veteran’s separation examination was normal and that he received workers comp for neck and shoulder injuries during his employment after his military service. The examiner continued that the Veteran received full Social Security Disability benefits for workplace related shoulder and neck disabilities. After reviewing all available data, interviewing the Veteran, and performing a focused examination the examiner opined that evidence shows the Veteran’s shoulder disability was more likely related to occupational post-service injuries. Further, the examiner noted that it was less likely than not that the Veteran’s current neck and right shoulder disabilities are caused by his right foot residuals. In September 2020, the Board again remanded the Veteran’s claim, and in response to that remand he was afforded September 2020 VA Shoulder and Neck examinations. Regarding the Veteran’s neck disability, after an in-person examination, and a thorough review of the records, the examiner opined that the neck disability and right foot scar residuals are not medically related. The examiner continued that the neck disability is a separate entity entirely. The examiner noted that a thorough review of the medical literature fails to demonstrate a causal relationship between the two conditions. The examiner cited to the Veteran's treatment notes from his admission to Columbia Palmyra Medical Centers which indicated his initial injury due to a slip and fall while at work in an "oily-type environment." The examiner noted that there is no mention of any instability or antalgic gate or foot numbness as reported by the Veteran. Additionally, the examiner noted that on the day of the examination there was no evidence that the Veteran experienced instability or antalgic gait related to his right foot disability. The examiner further stated that there was no nexus between the Veteran’s right foot residuals and his current neck disability. Further, the examiner found that the Veteran’s right foot residuals did not aggravate his neck disability as the Veteran’s neck condition was following the expected natural progression of worsening with his age. Regarding the Veteran’s right shoulder, in a September 2020 Addendum, the examiner, after an in person examination and thorough review of the record, opined that the Veteran’s right shoulder disability was not caused by his right foot residuals, instability, or gait. The examiner noted that upon review of the Veteran’s medical record there was documentation of a right shoulder injury that was the result of a work-related accident/fall where the Veteran received workman’s compensation for the accident. Further, the examiner noted that the first date noting arthritis in the shoulder was in March 2011, which is more consistent with arthritic changes due to advanced age. The examiner noted that on the day of the examination the Veteran’s gait was normal without evidence of instability. The examiner noted that there was no nexus between the Veteran’s right foot residuals and his current right shoulder disability. The examiner continued that the Veteran’s right shoulder disability had not been aggravated by his right foot residuals and that his right shoulder was following the natural progression of the degenerative arthritis, worsening with age. When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). While the Board is not free to ignore the opinion of a treating physician, it is free to discount the credibility of that physician’s statement. See Guerrieri v. Brown, 4 Vet. App. 467, 471-73 (1993); Sanden v. Derwinski, 2 Vet. App. 97, 101 (1992). Here, the Board gives greater weight to the VA examiners’ opinions opining against a nexus over the October 2016 opinion from Dr. J.R. The VA examiners reviewed the entirety of the Veteran’s claims file and explained their opinions with appropriate rationale. The Board may afford greater weight to one opinion over another on the basis of such factors as the reasoning employed, whether the opinion is based on sufficient facts and data, and whether the opinion is based on medical principles applied to the facts of the case. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has provided lay statements where he has stated that he believes his disabilities are etiologically related to his service-connected right foot residuals. The Board weighs the above-mentioned VA examinations against the Veteran’s lay contentions that his shoulder and neck conditions are due to his service-connected disability. While the Veteran is competent to testify to his symptoms, he is not competent to provide a medical opinion as to the etiology of his disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As such, the Board finds the VA examinations, which opined against a link between the Veteran’s currently diagnosed disabilities and his service, to be of high probative value. Additionally, the Board again notes that the Veteran was not diagnosed with these conditions until many years after he left active duty service. Additionally, the medical evidence in record relates these injuries to a workplace accident involving slipping in an “oily-type environment.” Thus, the probative evidence of record preponderates against the Veteran’s claim for service connection. In light of the above discussion, there is no evidence that the Veteran sought treatment for or was diagnosed with neck or right shoulder disabilities while in service, or within a year after service, and there is no nexus linking his current disabilities to his active duty service to include as secondary to his service connected right foot residuals. Therefore, the claims must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. TDIU—Legal Criteria Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of determining whether there is one disability evaluated at 60 percent, or one disability evaluated at 40 percent where the combined rating of all service-connected disabilities is 70 percent or greater, disabilities of one or both upper extremities or one or both lower extremities including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system will be considered as “one disability” for these purposes. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see, e.g., Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). A veteran’s age and/or impairment caused by nonservice-connected disabilities may not be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Marginal employment or employment in a protected environment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is a legal determination for VA adjudicators to make rather than a medical question to be answered by healthcare providers. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, VA examiners’ conclusions, as well as those of private medical professionals or vocational experts, are not dispositive. However, the observations of these professionals may provide probative evidence as to a Veteran’s ability to obtain and maintain employment consistent with his or her education and experience. Analysis The Veteran contends that his service-connected disabilities render him unable to secure or follow substantially gainful employment. The Veteran is service connected for a right foot scar at 10 percent disabling and right foot peripheral neuropathy at 10 percent disabling. He does not meet the schedular criteria under 38 C.F.R. § 4.16(a) for a TDIU. Nonetheless, in cases where the scheduler criteria are not met, an extraschedular rating must be considered. 38 C.F.R. § 3.321. Entitlement to benefits on an extra-schedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). As noted above, in determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Based on the evidence of record, the Board finds that TDIU is not warranted. The Board initially notes that the Veteran does not contend, and the evidence of record does not otherwise show, that his service-connected right foot disabilities preclude him from seeking substantially gainful employment. The medical evidence of the record indicates that the Veteran’s non-service-connected neck and shoulder disabilities cause him to be unable to obtain or maintain substantially gainful employment. See October 2019 VA examiner’s report. Additionally, the Veteran’s private treatment records indicate he is unemployable due to his non-service connected cervical degenerative disc disease, hypertension, fibromyalgia, diffuse osteoarthritis and tendonitis, depression, and anxiety. However, the Board notes that there is no evidence in the record that the Veteran’s service-connected right foot disabilities have by themselves rendered the Veteran unemployable. In this case, the weight of the evidence is against the conclusion that the Veteran's service-connected disabilities have rendered him incapable of being able to secure or follow substantially gainful employment. (Continued on the next page) In short, the Board finds that the preponderance of the evidence is against the claim for TDIU; therefore, entitlement to TDIU must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, 1 Vet. App. at 49. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.